[2021] KEHC 4774 (KLR)
The High Court lacks jurisdiction to resentence persons convicted of robbery with violence based on the Supreme Court's clarification that the Muruatetu decision is limited to murder offences. The directions issued by the Supreme Court on 6 July 2021 expressly exclude robbery with violence from the scope of...
Source-derived case information.
- Citation
- [2021] KEHC 4774 (KLR)
- Parties
- Appellant: Kennedy Kavai Abdalla; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Petition 189 of 2019
- Procedural Posture
- Resentencing Application / Judgment
- Outcome
- petition dismissed
- Judges
- DO Ogembo
- Legal Topics
- Resentencing, Robbery With Violence, Mandatory Sentences, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Kavai Abdalla
Appellant
Director of Public Prosecutions
Respondent
Procedural Posture
Resentencing Application / Judgment
Legal Issues
- 1 Whether the High Court has jurisdiction to resentence a petitioner convicted of robbery with violence following the Supreme Court decision in Muruatetu.
- 2 Whether the petitioner is entitled to resentencing based on the time already served and mitigating factors.
Ratio Decidendi
The High Court lacks jurisdiction to resentence persons convicted of robbery with violence based on the Supreme Court's clarification that the Muruatetu decision is limited to murder offences. The directions issued by the Supreme Court on 6 July 2021 expressly exclude robbery with violence from the scope of Muruatetu, thereby divesting the High Court of the authority to entertain resentencing applications for such offences. Consequently, the petitioner's application for resentencing is dismissed for want of jurisdiction, regardless of the mitigating factors advanced.
Court Disposition
petition dismissed
Orders
- The petition for resentencing is dismissed.
- No resentencing order is made.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
PETITION NO 189 OF 2019
KENNNEDY KAVAI ABDALLA.................................................................PETITIONER
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS...........................................RESPONDENT
JUDGEMENT ON RESENTENCING
1. Kennedy Kavai Abdalla the Petitioner herein was charged with the offence of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death. The Petitioner consequently filed an appeal vide Mombasa High Court Criminal Appeal No 144 of 1997 which was dismissed on 16th February 1999. His appeal to Court of Appeal in Mombasa Criminal Appeal No 42 of 1999 was dismissed on 27th July 1999. The Petitioner is now before this court for resentencing based on the decision of the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR.
2. This matter came up before court on 29/4/2021 when Ms. Wanjohi for the Respondent stated that the Respondent would rely on the submissions filed before this court on 21/4/2021. A similar position was taken by the Petitioner who gave oral submissions further to the ones filed in court on 14/1/2021. The Petitioner stated that he had been in jail for 26 years since 1996 and that no injuries had been inflicted on the victim at the time of committing the offence.
3. In his written submissions the Petitioner stated that the punishment meted against him had been excessive and did not serve the interest of justice. Reliance was placed on the case of Gaston January Stephen v Republic and in Yussuf Dahar Arog v Republic HCCR App. No. 110 of 2006 where the principles and purpose of sentencing were stated. He stated that was a first time offender and in his youthful age at the time of committing the offence and that he had benefitted from the prison rehabilitation programme. He placed reliance on Mulamba Ali Mulamba v Republic Cr. Appl. No. 12/2013. He prayed for the petition to be allowed and for a definite sentence to be imposed with a consideration of the time already served.
4. The Respondent on the other hand submitted that the aggravating circumstances of the offence committed by the Petitioner outweighed the mitigating circumstances in this case. That the offence committed was heinous and had left the victim with physical and psychological injuries. That for the interest of justice a deterrent sentence be meted upon the Petitioner to prevent future commission of such offences. The Respondent prayed for a 30-year sentence including the time served.
5. This Court has considered the submissions. The Petitioner was found in possession of stolen items of the victims 5 days after the robbery. The items included air tickets, passports and identification papers belonging to PW1. He was also in possession of Italian currency with no viable explanation on how he owned the same and he further led the police to the place where the G3 riffle used in the robbery was hidden.
6. However, of material significance to this case is that it is based on the finding of the Muruatetu case. However, the Supreme Court in the directions issued on 6/7/2021 clarified that the celebrated Muruatetu case was only limited to murder offenders, and that robbery with violence and other offenders were not to benefit therefrom. This direction automatically divests this Court the jurisdiction to resentence the Petitioner herein. The petition is dismissed.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 29TH DAY OF JULY, 2021.
E. K. OGOLA
JUDGE
Judgement delivered via MS Teams in the presence of:
Petitioner in person
Ms. Wanjohi for DPP
Ms. Peris Court Assistant